The Minister for Justice and Equality v Andrius Sciuka

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice Gerard Hogan,Mr. Justice Woulfe
• Judgment Date: 13 December 2021
• Neutral Citation: [2021] IESC 80
• Court: Supreme Court
• Docket Number: [2021] IECA 79 Supreme Court appeal number: S:AP:IE:2021:000029 Court of Appeal record number: 2021/37 High Court record number 2017/No 54 EXT

Between

The Minister for Justice and Equality

Applicant/Respondent

and

Andrius Sciuka

Respondent/Appellant

[2021] IESC 80

Dunne J

Charleton J

Baker J

Woulfe J

Hogan J

[2021] IECA 79

[2021] IEHC 31

Supreme Court appeal number: S:AP:IE:2021:000029

Court of Appeal record number: 2021/37

High Court record number 2017/No 54 EXT

An Chúirt Uachtarach

The Supreme Court

European arrest warrant – Surrender – Postponement – Appellant appealing the order postponing the surrender of the appellant to the Republic of Lithuania – Whether the cancellation of certain flights during the course of the COVID-19 pandemic justified the postponement of the surrender of the appellant to Lithuania

Facts: The appellant, Mr Sciuka, appealed to the Supreme Court against the judgment of the Court of Appeal delivered on the 22nd March 2021 which dismissed the appellant’s appeal against the order of the High Court made on the 10th February, 2021 postponing the surrender of the appellant to the Republic of Lithuania: [2021] IECA 79. The Supreme Court granted leave to the appellant to appeal by a determination dated the 9th July, 2021: [2021] IESCDET 78. The essential question presented by the appeal was whether the cancellation of certain flights during the course of the COVID-19 pandemic justified the postponement of the surrender of the appellant to Lithuania pursuant to a European arrest warrant issued by Lithuania dated the 14th February, 2017 and endorsed by the High Court on the 13th March, 2017 pursuant to the European Arrest Warrant Act 2003, having regard to the humanitarian considerations provisions of Article 23(4) of the Council Framework Decision of 13 June 2002 (2002/584/JHA).

Held by Hogan J that, based on the particular facts of the case, the respondent, the Minister for Justice and Equality, had not established that, at the time that the order for surrender in February 2021 was due to take effect, there existed a state of affairs such as would have effectively prevented the surrender of the appellant to Lithuania on humanitarian grounds. In the circumstances, Hogan J did not think that the High Court or the Court of Appeal was correct to conclude that the humanitarian considerations exception provided for in s. 18 of the 2003 Act and Article 23(4) of the Framework Decision had been made out.

Hogan J held that the appeal would be allowed.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on Monday 13 December 2021

1 Woulfe J would hold that the postponement of the surrender of Andrius Sciuka to Lithuania, extradition having been ordered on foot of a European Arrest Warrant, was lawful, whereas Hogan J takes the opposite view. This judgment gives reasons for concurring with Hogan J.

2 Having been scheduled for surrender to Lithuanian authorities in Dublin Airport on 5 February 2021, the requesting state sought a postponement due to the rampant COVID-19 pandemic. This was the highpoint in much of Europe for the disease which has caused perhaps 5 million deaths worldwide. Postponement of a surrender order is a serious matter under Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, since this is required to take place within 10 days after the High Court has made an extradition order. Delay is exceptional, possible on humanitarian grounds (s 18 of the European Arrest Warrant Act 2003 and Article 23 of the Framework Decision) and because of circumstances beyond the control of the requesting and requested authorities mutually. Woulfe J would hold that the letter from the Lithuanian authorities indicating the closure of the usual air route of Ireland-Germany-Lithuania is sufficient evidence to postpone surrender in this instance. He would further hold that judicial notice was properly taken of the raging pandemic in ordering postponement and that protection from this disease, easily picked up when travelling, was a humanitarian ground justifying the surrender being put back. As Hogan J notes, delay is an exceptional step and justifiable only on serious grounds; further holding that the letter from the travel agent appended to the communication from the requesting state was insufficient.

3 Where both judgments concur is in placing the duty on the Minister to put before the High Court sufficient evidence to establish the existence either of a beyond control situation or humanitarian considerations justifying delay. Woulfe J's analysis enables judicial notice to be taken of the disruption caused by the seething spread of the disease and its unpredictable and mutating variants as the reason for the unavailability of flights to Germany, thereby enabling the High Court to rely on its own judicial notice of travel difficulties; Hogan J disagrees.

Judicial notice

4 A disconnect occurs on reading Davitt J's judgment in The State (William Taylor) v Circuit Court Judge for Wicklow [1951] IR 311, 322, between his impeccable reasoning that a judge “is entitled to bring to the determination of any issue his own knowledge relevant thereto, not his private or particular knowledge as an individual but his general knowledge as a lawyer and a Judge” and the issue that arises in the mind at how knowledge shifts with the changing habits of generations. Whereas his example of the relationship between Robinson Crusoe and Man Friday has passed into a term of general speech, in reality young readers may no longer be given this book and hence know little about the origin of the concept of footsteps in the sand. His second example of “the frozen snake in the fable” would not readily draw to mind the concept of ingratitude and ingrained nature; as Aesop recounts the tale, a farmer finds a frozen snake on his land, brings it into his home and carefully enables it to thaw, only to be bitten when the reptile reverts to character as well as to life. What was commonplace currency at one time may dissipate with the passing of the generations. But, as Professor John T McNaughton states, Judicial Notice-Excerpts Relating to the Morgan-Wigmore Controversy, (1969) 14 Vanderbilt Law Rev 778 at 786:

the one distinguishing characteristic of judicial notice is the concept that the tribunal has the right, in appropriate instances, to inform itself as to a material matter by methods in addition to the reception of formal evidence, and it is implicit that the information may be obtained by resort to sources other than those adduced by the litigating parties.”

5 Judicial notice may be only taken of such “facts which are so well-known or notorious as to render proof unnecessary”; Powles, Waine and May, Criminal Evidence (6th edition, London, 2015) 5.08. An oft-cited example is that Christmas day is on 25 December, but even there with the shifting cultural landscape means that for those following the Julian calendar it is on 7 January. The doctrine of judicial notice is there to enable only the facts in dispute between litigants to be focused on and to leave what is clear and obvious as a background not requiring specific mention. Perhaps subsidiary to that is that courts should require essential proof only and not lapse into pernickety demands as if judges lived outside the real world; EM Morgan, Judicial Notice (1944) 56(3) Harv L Rev 269. Hence, Professor Morgan states:

In an adversary system such as ours, where the court is bound to know the law and the parties to make known the facts, it is particularly important that the court prevent a party from presenting a moot issue or inducing a false result by disputing what in the existing state of society is demonstrably indisputable among reasonable men [and women].

6 Just as the hearsay doctrine has a specific exception for notorious facts and for public records, thus readily ascertainable facts from sources of generally impeccable reliability can establish, for instance, the course of a road, a watercourse or a railway line; Henchy J in Minister for Defence v Buckley [1978] IR 314, finding that a map referred to in relevant statute could be relied upon as prima facie evidence in the absence of contrary evidence as to its accuracy. Notoriety, however, is not to be equated with conclusivity. Wigmore, Evidence (3rd edition, Boston, 1940) at p 535 states that where judicial notice is taken of a fact, “the opponent is not prevented from disputing the matter by evidence, if he believes it disputable.” Such a dispute would rarely arise as the judicial notice doctrine concerns backdrops to facts in issue as opposed to the disputed facts. Hence, Davitt J in The State (William Taylor) v Circuit Court Judge for Wicklow at p 320 rightly rested the doctrine of judicial notice “upon foundations of common sense, experience, and convenience rather than on any more logical or scientific principles.” To again quote Professor Morgan's exposition, at 291:

Resort to the basic reasons for judicial notice marks the limits of the matters noticed and of the field of application in litigation. There is no part of the process of administering justice in a rational system in which the administering agency may properly disregard what is so widely accepted as true as not to be the subject of reasonable dispute or what can 'be immediately and accurately demonstrated to be true by resort to easily accessible sources of indisputable accuracy.

7 A short journey through the caselaw confirms this. If a fact in issue is where the land border is on this island, on a customs charge of exporting pigs to Northern Ireland, proper proof will be required; AG v Kirk [1955–56] Ir Jur Rep 57. Similarly, foreign laws and legislation may be accepted by the parties to establish a relevant legal status, but otherwise must be proven; O'Callaghan v O'Sullivan [1925] 1 IR 90. But: that international airports generally rigorously check passports ( MSM v Refugee Appeals Tribunal [2015] IEHC 330);...